July 10, 2012

A Washington federal judge granted a preliminary injunction yesterday to President Barack Obama's campaign committee, which sued a local vendor for allegedly using the campaign's "Rising Sun" logo without permission.

Obama for America sued DemStore.com and its parent company, Washington Promotions & Printing, on June 1 in U.S. District Court for the District of Columbia, accusing the company of selling merchandise featuring the trademarked logo.

Shortly after hearing arguments yesterday, U.S. District Judge Emmet Sullivan
granted a preliminary injunction (PDF) to the campaign, barring DemStore from using the trademark or any image that "is confusingly similar" and engaging in any behavior that might mislead consumers into thinking the site is affiliated with the campaign.

DemStore Chief Executive Officer Steve Schwat, in an e-mail, said today that he was disappointed with the court's ruling and "more disappointed in the campaign’s decision to continue to pursue this." The company is being represented by Jeffrey Cohen and Michael Culver of Arlington, Va.'s Millen, White, Zelano & Branigan.

"Clearly, the fund raising efforts via the sale of merchandise is not adding up the way the campaign had [hoped]," Schwat said. "It is and always has been our feeling, that, for the most part, with some exceptions, political fundraising and promotional product sales should be mutually exclusive, we believe that such mixing is confusing to consumers and supporters."

A campaign spokeswoman was not immediately available for comment. The campaign is being represented by a team from Perkins Coie's Washington, Chicago and Seattle offices.

The logo at issue was trademarked in 2008, according to the campaign's complaint. A similar logo was trademarked for Obama's re-election campaign in 2011. The campaign claimed in its complaint that it was worried that DemStore's use of the logo would "create confusion" among consumers and hurt its ability to raise money in the future.

In its
motion (PDF) for a preliminary injunction, the campaign noted that the majority of merchandise is sold during the six months leading up to an election. During the 2008 campaign cycle, for instance, the Obama campaign sold more than 65 percent of its merchandise during that time period, according to the brief. The campaign said it expects a similar sales pattern leading up to November's general election.

"While [the campaign] could recover monetary damages through summary judgment or trial, because of the election timeframe within which [the campaign] operates, such relief will almost certainly come after the Campaign is able to use the money," the campaign wrote.

DemStore argued in its
opposition brief (PDF) that because the campaign was aware of DemStore's alleged infringement as early as 2007 and, for this campaign cycle, in 2010, it was too late for them to argue that they needed immediate relief. DemStore also argued that the campaign had failed to show it would suffer "irreparable harm" because a donation to the campaign is different from buying merchandise.

"Plaintiff cannot rule out that a person may desire a less expensive t-shirt from Defendants while still engaging in political support by donations through Plaintiff’s website, and that Plaintiff thereby also gains information from voters and supporters," DemStore wrote in its brief.